The first Court of Protection judgment on mental capacity, best interests and the Covid-19 vaccination.

The first reported judgment has been handed down by Hayden J in E (Vaccine) [2021] EWCOP 7, in relation to capacity, best interests and the Covid-19 vaccine.  The full judgement can be found here.

E, an 80-year-old woman residing in a care home was diagnosed with dementia and schizophrenia. She had been assessed by her GP as lacking capacity to consent to a Covid-19 vaccination. Despite lacking capacity to consent to receiving the vaccine, she was able to communicate her view, being that she deferred to what her treating health care professional thought was best with regards to the administration of the vaccine.

E’s son was however “deeply sceptical about the efficacy of the vaccine” especially the speed at which the vaccine was approved and whether the tests had properly incorporated issues relating to ethnicity.  As such, E was opposed to his mother receiving the vaccine, in contrast with the recommendation made by the medical professionals involved in E’s care.  In reviewing best interests, Hayden J was obliged by s. 4(7) of the Mental Capacity Act 2005 to consider E’s son’s views, however it was clear that the focus here was very person-centric, concentrating on E’s past and present wishes and feelings and the beliefs and values that would be likely to influence E’s decision, if she had capacity.

Relevant to this was that E, before her diagnosis of dementia had previously consented to various other vaccinations (such as those available for the flu and swine flu). Hayden J also considered the very high risks presented to E by Covid -19 given her age, health issues, environment by virtue of living in a care home with positive cases, and inability to understand the nature or transmission of Covid-19. On balance, Hayden J concluded that the vaccination was in E’s best interests, despite the concerns raised by E’s son.

Hayden J also indicated that the outcome on these facts would have been the same even if E’s son had been appointed as a Health and Welfare Lasting Power of Attorney for E.

As this case is very fact-specific, it will be interesting to compare this judgment with future cases, based on a different set of facts for example if the Protected Party had previously declined vaccinations when they had capacity.

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